Opinion
DOCKET NO. A-1606-12T1
04-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. D.M., Defendant-Appellant.
Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Terel L. Klein, on the briefs). Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Fasciale and Haas. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-02-0197. Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Terel L. Klein, on the briefs). Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D.
In this appeal, defendant D.M. challenges his conviction for having committed multiple acts of sexual assault against his wife's niece M.A. (Susan), in a period of time from April 1, 2009 through April 30, 2010, when Susan was between ten and eleven years old. Defendant was also convicted of committing multiple sexual assaults and acts intended to debauch the morals of a child against his stepdaughter R.B. (Jane), in a period of time commencing January 1, 2004 and ending December 31, 2006, when Jane was between nine and twelve years old. The jury reached the verdict related to the crimes defendant committed against Jane and Susan after hearing evidence presented by the State over six trial-days in January 2012.
Pursuant to N.J.S.A. 2A:82-46, the "identity of a victim who was under the age of 18 at the time of the alleged commission of an offense shall not appear on . . . any . . . public record[.]" We will thus refer to the two victims involved in this case by fictitious names, including any family members whose names may be used to identify them.
With respect to Susan, the jury acquitted defendant of one count of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), but found him guilty of the lesser included offense of second degree sexual assault, N.J.S.A. 2C:14-2b. On the remaining counts of the indictment involving Susan, the jury found defendant guilty of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), second degree sexual assault, N.J.S.A. 2C:14-2b, and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. On the charges involving his stepdaughter Jane, the jury found defendant guilty of three counts of second degree sexual assault N.J.S.A. 2C:14-2b, and two counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a.
The Judgment of Conviction (JOC) incorrectly reflects the conviction for endangering the welfare of a child as a second degree offense. The record shows that on the fourth day of trial the judge granted defendant's motion and amended the charge to a third degree offense. The judge found the State failed to present sufficient evidence to establish, beyond a reasonable doubt, that defendant "had a legal duty" for Susan's care or had "assumed responsibility" for her care at the time he engaged "in sexual conduct which would impair or debauch the morals" of this child. N.J.S.A. 2C:24-4a(1). We thus remand for the trial court to correct this technical error in the JOC.
Defendant is not challenging the propriety of the sentence on appeal. We will thus dispense with reciting in detail the various terms of imprisonment imposed by the trial court. We simply note that the trial court sentenced defendant to an aggregate term of thirty years with twenty-five years and eight months of parole ineligibility.
The sentencing judge explained in detail how he reached this aggregate number, including the applicability, where appropriate, of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the community supervision for life requirements of N.J.S.A. 2C:43-6.4, and the registration requirements of N.J.S.A. 2C:7-2 and other mandatory features of what is commonly referred to as Megan's Law.
Defendant frames the State's case against him as heavily dependent on the credibility of his accusers, the two girls we have referred to as Susan and Jane. Defendant argues that anything that unfairly undermined the credibility of his trial testimony denying the accusations made against him by these children should be viewed by this court as sufficient grounds for reversing his conviction.
In furtherance of this line of reasoning, defendant argues the prosecutor intentionally asked defendant during cross-examination about a complaint filed against him in Pennsylvania by his stepdaughter Jane. This subject matter had been previously ruled inadmissible by the trial judge. Defendant claims the prosecutor nevertheless asked about the existence of this complaint to leave the jury with the improper impression that he had lied about this sensitive matter.
After carefully reviewing the record developed before the trial court and considering all of the issues raised in this appeal, we reject defendant's arguments and affirm. The following facts will inform our legal analysis.
I
Jane was approximately six years old when defendant began dating her mother K.B. (Robin) in 2001. Defendant moved in with Robin and Jane shortly thereafter. Defendant married Robin in 2004, and the two have a son together. The family first lived in Jersey City, relocated to Lyndhurst for a period of time, and then eventually returned to Jersey City. The family moved to Pennsylvania in 2009 and remained there for approximately one year. During this period of time, defendant regularly stayed in the home of his wife's cousin, who resided with her husband and three daughters. Eleven-year-old Susan was the youngest of the three girls.
Jane testified at trial that on November 10, 2010, she gave her mother Robin a letter stating defendant had sexually abused her. She thereafter left for school without discussing the matter with her mother. As Jane described it to the jury, later that day, "I got taken out of English class to go down to the guidance office and my mom was there and also my guidance counselor and a police officer." Detective Melissa Pera of the Bergen County Prosecutor's Office interviewed both Jane and Robin.
Although Jane's letter was admitted into evidence and was one of the documents the jury had during deliberations, this evidence was not provided to us as part of the appellate record.
Detective Pera testified that she had been with the Bergen County Prosecutor's Office for more than fourteen years and had received specialized training and taken courses on the protocols that must be followed when interviewing children who claimed to have been sexually molested. Detective Pera interviewed sixteen-year-old Jane and her mother on November 30, 2010, at the Prosecutor's Office. Following the established protocol, the interview was audio recorded. Detective Pera explained that only interviews of children under the age of twelve are both video and audio recorded.
The record reflects the State attempted to admit into evidence documents showing Jane had accused defendant of sexually molesting her in Pennsylvania. Defendant argued this evidence should be excluded as unduly prejudicial and lacking probative value with respect to the charges he was facing in this trial. The trial judge accepted defendant's argument and denied the State's motion. The judge found this evidence would inappropriately "taint this case" by showing defendant's predisposition to commit sexual crimes against children in violation of N.J.R.E. 404(b). The court also found the prejudicial effect outweighed the probative value of this evidence and was therefore also inadmissible under N.J.R.E. 403.
Jane testified defendant began touching her in a sexually inappropriate manner when the family was living in Lyndhurst, "around 2004 [to] 2006," when she was between nine and ten years old. When asked by the prosecutor to be specific, Jane described defendant's behavior as follows: "He would go, when I was sleeping he would climb up my ladder [of the loft bed] and touch me inappropriately on my vagina." When asked to elaborate, Jane testified the contact was direct, not over clothing or blankets, and involved both her vagina and breasts.
The molestation continued after the family moved back to Jersey City. Jane was approximately eleven years old at the time. She testified defendant went into her room a few times, watched her sleep, and touched her over the blankets. In her words, defendant would "grab in my lower part . . . my vagina." In contrast to what occurred in Lyndhurst, Jane testified defendant only touched her over the blankets during this period of time in Jersey City.
Susan also testified about incidents of molestation that occurred when defendant was staying with her family. The molestation occurred at night and when she arrived home early from school. According to Susan, defendant told her to go into his room or pulled her by the arm back into his room when she attempted to leave. Once inside his room, he touched her vagina with his fingers. On another occasion, he touched her while she was lying on the couch in the living room. These incidents of molestation occurred "five to six times." She also testified that on one occasion defendant performed oral sex on her and forced her to touch his penis.
Defendant testified in his own defense. He denied ever touching his stepdaughter Jane in a sexually inappropriate manner. He claimed the only time he climbed the ladder leading to Jane's bed was when he assembled it. According to defendant, he was physically unable to climb the ladder after he had shoulder surgery in July 2005.
Defendant testified he had a "fine" relationship with Jane until his son with her mother was born. According to defendant, from that point forward "she started being more disrespectful towards me, calling me names." It was also around the time she was eleven or twelve years old that he began to assert a more vigilant parental role with respect to Jane's internet access. Defendant testified that when Jane was fourteen years old he "caught her inappropriately texting" a boy. When asked by his attorney to describe what Jane was doing, defendant answered, "It's sexting if I'm not mistaken."
Defendant claimed Jane's sexually inappropriate use of her cell phone only increased after this event. Defendant testified the last incident involving this kind of misbehavior occurred on November 3, 2009, when he discovered Jane "sexting three different boys." He yelled at her, "[W]hat the hell are you doing? You can't be doing this. If you're thinking about doing these things you need to speak to a woman doctor. You need to speak to your mother but I didn't tell my wife about it."
When his attorney asked him why he did not tell Jane's mother, defendant responded, "Because at the time my wife started taking antidepressants. She felt like she said she was going to commit suicide because she was depressed because she lost her job and started going to school." The trial judge immediately sustained the prosecutor's hearsay objection. Although defense counsel attempted to navigate around this impediment through follow-up questions, defendant's answers only confirmed the hearsay basis of his claim concerning his wife's alleged depression. Defendant emphasized, however, that Jane's November 10, 2010 letter to her mother accusing him of sexually abusing her occurred six days after the last time he caught her "sexting."
With respect to Susan's accusations, defendant testified that when he stayed at this child's house he worked from about 1:30 p.m. until 11:30 p.m. during the week. As soon as he arrived at the house after work, he would go to his room and play video games. He stayed with his family in Pennsylvania during the weekends. Defendant testified that when he was at the cousin's house, Susan was usually with her mother or sisters. He did not spend long periods of time with her. He denied ever taking Susan into his bedroom or touching her inappropriately.
On direct examination, defendant testified he worked in schools for nine years and had never had a complaint filed against him or ever before been charged with a crime. On cross-examination, the prosecutor seized this as an opportunity to question defendant about Jane's Pennsylvania accusation which the trial judge had previously ruled was inadmissible under N.J.R.E. 404(b) and N.J.R.E. 403.
PROSECUTOR: It's your testimony in the nine years never a complaint was filed against you, correct?
DEFENDANT: Correct.
PROSECUTOR: That's a lie, isn't it? Wasn't there a complaint filed in Pennsylvania?
DEFENDANT: Yes, there was a complaint by [Jane].
PROSECUTOR: Yes or no, [D.M.]?
DEFENDANT: Yes.
THE COURT: Hold on. One at a time.
A VOICE: Quiet in the audience.
PROSECUTOR: I have nothing further, your Honor.
DEFENDANT: Can I answer that please?
THE COURT: No. That's the cross.
The trial transcript does not reflect defense counsel objected to this part of the prosecutor's cross-examination. The following took place a short time later, after the judge had excused the jury:
DEFENSE COUNSEL: I have one question because I was in the moment. There were certain things, there was a reference to Pennsylvania.The record reflects defense counsel requested that portions of the prosecutor's cross-examination of defendant be "read back."
THE COURT: Right.
DEFENSE COUNSEL: I know I objected when I heard the word Pennsylvania. But I don't know specifically what was said. Can I have a read back on that?
DEFENSE COUNSEL: I have a problem because now the jury hears that there was a complaint filed - - but he said it.
THE COURT: He said it on direct that there were no complaints filed against him so that opened the door at least for that question were there complaints.
DEFENSE COUNSEL: But the question should not have been about Pennsylvania.
THE COURT: Anyplace in the world. It was not limited on direct to New Jersey. It was in the nine years have there been ever any complaints period.
That was the question in general. And that was appropriate I find. We didn't get into anything further.
PROSECUTOR: No. No. I didn't even indicate in the question, your Honor, who may have
filed the complaint or what not. The defendant said that.
THE COURT: Or what the complaint was.
DEFENSE COUNSEL: I just prefer we not discuss Pennsylvania uniformly.
THE COURT: And I prefer that way too except once he on direct said there have never been any complaints it was fodder to at least ask wasn't there a complaint filed in Pennsylvania. That's all.
All courtrooms are now equipped with audio recording equipment. In fact, many courtrooms have both video and audio recording equipment. However, because defense counsel requested a "read back" as opposed to a "playback," we infer this may be one of the now rare instances where a stenographer was used.
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At this point the court recessed for lunch. When the court reconvened in the afternoon, the trial judge made the following sua sponte comments:
THE COURT: On cross-examination the Assistant Prosecutor confronted the defendant with a Pennsylvania complaint which he acknowledged. In fact he acknowledged and said it was [Jane] who filed it.
As we know from the beginning of this case it was my intention to keep out Pennsylvania altogether but I did find and understand once that question was asked the door was open.
However, what I intend on instructing the jury is that they are not to consider at all or to presume or to assume or in any way speculate that the subject matter of what happened in Pennsylvania in a complaint has anything to do with the subject matter here, that there are many types of complaints, civil, divorce cases, family cases and a complaint is merely a complaint, not proof of anything and that the only thing they may consider it for is for purposes of impeaching credibility, that is he said
there was never a complaint and it turns out there was.
They can consider whether that's material or not. They can ignore it or however they want to deal with it.
That's my intention. . . .
DEFENSE COUNSEL: Fine.
THE COURT: Counsel.
PROSECUTOR: That's fine your Honor.
The record reflects the trial judge gave this curative instruction to the jury immediately after the start of the afternoon session on Thursday, January 19, 2012. The trial resumed five days later on Tuesday, January 24, 2012. The morning session began that day with a request by defense counsel for a "slow read back of exactly the question that was asked [by the prosecutor] and exactly what the answer was [that defendant gave]." Defense counsel addressed the court after the "read back." Counsel claimed defendant was confused and did not understand the question. Counsel argued defendant did not lie because "Pennsylvania . . . threw out the complaint."
At the end of defense counsel's extended argument, the trial judge asked counsel a straight forward question: "So what do you want me to do?" Counsel requested the trial judge instruct the jury "not to consider anything about Pennsylvania and they are not to give any weight to anything because [defendant] didn't lie." The prosecutor objected to defense counsel's proposed curative instruction. At the end of the argument, the trial judge denied defense counsel's application.
THE COURT: I gave them that instruction that it was up to them to determine whether this is relevant at all and if they should give any weight to it but I'm not going to tell them they must give no weight. It's up to them.After the attorneys' summation, the trial judge again gave the jury a brief limiting instruction on how to consider defendant's testimony with respect to this issue.
The answers were clear on direct and cross-examination. Whether they should give weight or what weight I am leaving it to the jury. I'm not going to, as a matter of law, take that out. That's my ruling.
The State called Dr. Anthony D'Urso, Psy.D., as an expert witness on Child Sexual Abuse Accommodation Syndrome (CSAAS). Although the prosecutor listed Dr. D'Urso as a potential expert witness on CSAAS, she did not provide defense counsel with a written report or a statement of the facts and opinions to which Dr. D'Urso was expected to testify and a summary of the grounds for each opinion. R. 3:13-3(b)(1)(I). The trial judge overruled defense counsel's objection and permitted Dr. D'Urso to testify. However, before Dr. D'Urso began his testimony, the court gave the jury the following limiting instructions:
Now, the law recognizes that stereotypes about sexual assault complaints may lead some of you to question the complainants' [credibility] based solely on the fact that he or she, whoever the complainant may be in a case, doesn't complain about the alleged abuse earlier.
You may or may not conclude such testimony is untruthful based on such conduct. You may consider any delayed disclosure, silence or any other conduct along with other evidence including complainants', both complainants' explanation for their silence, delayed disclosure or any other conduct.
And in deciding how much weight if any to afford their testimony, their credibility[,] you may also consider the expert testimony explaining their conduct as one of the many ways in which a child may respond to sexual abuse.
Accordingly, your deliberations in this regard should be informed by the testimony presented concerning [CSAAS].
You may not consider the expert testimony as in any way proving that the defendant committed or did not commit any particular act or abuse. Testimony as to the accommodation syndrome is offered only to explain certain behavior of an alleged victim or victims of child sexual abuse.
Dr. D'Urso described for the jury the five characteristics of CSAAS: (1) secrecy; (2) helplessness; (3) coercion, entrapment, or accommodation; (4) delayed or unconvincing disclosure; and (5) recantation. With respect to delayed or unconvincing disclosure, Dr. Urso testified as follows:
The unconvincing part is because kids don't tell everything. They don't have a memory of everything that happened to them and they typically don't tell everything that's happened to them. They tell a little bit. . . .
Or they tell different things to different people . . . .
So the unconvincing part is they may not tell the same story to every person because kids usually respond to who is this person asking this question and I'll give them the information that's kind of important to their role. So that's the delayed or unconvincing disclosure.
After Dr. D'Urso completed his testimony, the judge repeated the CSAAS limiting instruction he gave before the witness took the stand. The judge also incorporated the CSAAS limiting instruction as part of his final charge to the jury.
During deliberations the jury requested the judge read back defendant's testimony regarding "the question [that] was asked about having any other complaints." Defense counsel requested that the judge again give the limiting instruction, and the judge did so after the court reporter read back the testimony on direct and cross-examination, stating in part, "Do not take the fact that there was a complaint filed to indicate the subject matter is the same [as] this complaint."
II
Against these facts defendant now appeals raising the following arguments:
POINT ONE
THE TRIAL COURT'S DEFECTIVE INSTRUCTIONS TO THE JURY FALSELY AND AUTHORATATIVELY ESTABLISHED THAT [D.M.] MADE INCONSISTENT STATEMENTS DURING HIS TESTIMONY AND VIOLATED [D.M.'S] FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
POINT TWO
THE PROSECUTOR'S PRESENTATION OF FALSE INFORMATION AND DEFENDANT'S PRIOR BAD ACTS TO THE JURY, IN VIOLATION OF THE TRIAL COURT'S RULING, CONSTITUTED MISCONDUCT BECAUSE IT WAS INTENDED TO MISLEAD THE JURY AND OBTAINED A CONVICTION BASED ON FALSEHOOD.
POINT THREE
EXPERT TESTIMONY PRESENTED BY THE STATE ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME, WHICH IMPROPERLY BOLSTERED THE CREDIBILITY OF R.B. AND M.A., ALONG WITH THE STATE'S FAILURE TO ADHERE TO ITS DISCOVERY OBLIGATIONS, VIOLATED [D.M.'S] RIGHT TO A FAIR TRIAL.
POINT FOUR
EVEN IF THIS COURT DETERMINES THAT NO SINGLE ERROR OR INSTANCE OF MISCONDUCT JUSTIFIES REVERSAL, REVERSAL OF [D.M.'S] CONVICTION IS APPROPRIATE UNDER THE CUMULATIVE ERROR DOCTRINE.
We reject these arguments and affirm. We will begin our analysis by addressing defendant's argument concerning the manner in which the trial judge decided the question of defendant's credibility and the Pennsylvania complaint. The threshold issue is whether the judge properly allowed the jury to consider the testimony for the purpose of determining credibility.
Trial courts have discretion on whether to exclude evidence. State v. Hamilton, 193 N.J. 255, 264 (2008). The trial judge initially deemed evidence of Jane's accusations against defendant in Pennsylvania more prejudicial than probative under N.J.R.E. 403, and decided not to admit the complaint into evidence. After defendant testified that Jane had indeed filed a complaint within the nine-year period covered by defense counsel on direct examination, the judge decided the evidence would be admissible for a limited purpose of weighing defendant's credibility, not for substantive purposes. This approach was entirely consistent with the judge's earlier ruling. We discern no abuse of discretion in permitting the jury to consider the testimony for impeachment purposes. As the judge correctly noted, defendant opened the door to this line of questioning by the State when he placed his veracity at issue on direct examination.
"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). "Generally, the judge is bound to comply with requests for instructions that correctly state the controlling legal principles in relation to the evidence, and concern the material issues and points of the case." Id. at 290 (quoting State v. Spruill, 16 N.J. 73, 81 (1954)). A reviewing court must examine jury instructions as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973).
A trial judge's decision to provide a limiting instruction to cure the introduction of inadmissible evidence is "peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Denmon, 347 N.J. Super. 457, 464 (App. Div.) (quoting State v. Winter, 96 N.J. 640, 646-47 (1984)), certif. denied, 174 N.J. 41 (2002). A plain error is one that creates a possibility of an unjust result "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
Here, the trial judge provided limiting instructions (1) immediately after the jury heard the inadmissible evidence; (2) after the assistant prosecutor mentioned it in her summation; and (3) when the jury asked a question about it while deliberating. The judge's response was "swift and appropriate" and the instructions were appropriately tailored to the facts at issue. State v. Cooke, 345 N.J. Super. 480, 486 (App. Div. 2001), certif. denied, 171 N.J. 340 (2002). The instructions explained the limited purpose for which the jury could consider the testimony and emphasized the complaint did not necessarily relate to child sexual. This prevented the testimony from leading the jury to a result it otherwise might not have reached. See State v. LaPorte, 62 N.J. 312, 318-20 (1973) (finding that evidence that the defendant was wanted for armed robbery was improper because the witness disclosed the "specific nature" of the charge, but that the judge's instruction to disregard the statement was sufficient).
The instructions also did not compel the jury to find defendant was untruthful. The jury was free to find that there was no contradiction in defendant's testimony. As argued by defense counsel, it is plausible to find defendant was not inconsistent or untruthful when comparing his testimony on direct examination that he never received a complaint against him in nine years, with his statement on cross-examination confirming Jane made a complaint against him in Pennsylvania.
Although the judge at one point referred to "the fact that a complaint was filed," he also informed the jury that it was free to ignore the testimony in its entirety. When considered in light of the totality of the circumstances, the curative instructions did not create the possibility of an unjust result and were not an abuse of the judge's discretion. For these reasons we reject defendant's argument attacking the prosecutor's conduct on cross-examination.
In Argument Point III defendant contends the trial court should have barred Dr. D'Urso as an expert witness because his testimony was introduced as substantive evidence that defendant sexually abused the girls, and thus exceeded the scope of the theory of CSAAS. We disagree. The proper purpose of expert testimony on CSAAS is "to assist a jury in evaluating evidence about an alleged victim's post-assault conduct or behaviors when that conduct may be misperceived by jurors as inconsistent with the truthfulness of the claim of assault." State v. P.H., 178 N.J. 378, 395 (2004); see also State v. J.Q., 130 N.J. 554, 582 (1993).
Testimony describing CSAAS is usually admitted on rebuttal to rehabilitate a victim's testimony after an attack on the victim's credibility, usually related to delayed reporting, see P.H., supra, 178 N.J. at 395; it is not admissible as substantive evidence of a defendant's guilt, State v. W.L., Sr., 292 N.J. Super. 100, 114-15 (App. Div. 1996). The expert may not testify on matters outside the scope of the theory of CSAAS, and may not testify regarding whether the behavior of a specific victim is consistent with abuse. See J.Q., supra, 130 N.J. at 577-78. The expert witness also may not testify regarding the credibility of sexual abuse victims. State v. W.B., 205 N.J. 588, 597 (2011).
Here, the State introduced Dr. D'Urso's testimony in a rehabilitative manner, after defendant attempted to impeach the girls' credibility because of their delayed reporting. Defense counsel questioned Jane as follows:
Q: So we'll assume that — okay. So the touching started after 2004?
A: Yes.
Q: And you carried that burden around or at least you say you carried that burden around until 2010?
A: Yes.
Q: That was six years.
Counsel also attempted to point out discrepancies between Jane's report to Detective Pera and her trial testimony. Counsel attempted to impeach Susan's credibility in the same fashion. Defense counsel pointed out a discrepancy between Susan's trial testimony and her statement to Detective Pera concerning the location of one instance of sexual abuse. Under these circumstances, the court properly admitted testimony on CSAAS for rehabilitative purposes.
Dr. D'Urso's testimony was also within the scope of permissible CSAAS testimony. Dr. D'Urso twice specified that CSAAS is not a diagnostic or predictive tool; it is a means to explain the behavior of children who may have been sexually abused. Dr. D'Urso also made clear he did not have any specific information about this case. He described the five characteristics of CSAAS and provided examples and explanations of each of these characteristics. To explain unconvincing disclosure, he stated that
[K]ids don't tell everything. They don't have a memory of everything that happened to them and they typically don't tell everything that's happened to them. They tell a little bit. They see how people respond to them. They make judgments about whether it's safe to continue telling.
Or they tell different things to different people because kids are exposed to very quickly in a child abuse investigation a detective, a Prosecutor. . . .
So the unconvincing part is they may not tell the same story to every person because kids usually respond to who is this person asking this question and I'll give them the information that's kind of important to their role. . . .
Summit also talked about the fact [that] disclosure tends to be a term piecemeal. That is they tell a little bit. And then
maybe they go to therapy. They tell a little bit more.
This testimony was within the scope of CSAAS. Dr. D'Urso did not testify as to the credibility of victims of sexual abuse, and declined to answer a question on whether children lie, explaining it was outside the scope of his permissible testimony and "[t]here's a Supreme Court case on that." Cf. W.B., supra, 205 N.J. at 610-11; J.Q., supra, 130 N.J. at 577 (finding that testimony on how to determine whether a child was lying about abuse would likely be improper opinion evidence). We are satisfied the trial court properly admitted this witness to testify because his testimony was within the permissible scope of CSAAS.
Finally, we reject defendant's argument concerning the State's failure to comply with its discovery obligations under Rule 3:13-3. A trial court has discretion to allow expert testimony in the absence of compliance with Rule 3:13-3(b)(1)(I), as long as there is no unfair surprise or prejudice to the defendant and the State did not intend to mislead the defendant. State v. LaBrutto, 114 N.J. 187, 205 (1989). Here, the record shows defense counsel was aware well in advance of trial of the State's intention call Dr. D'Urso as a potential expert witness limited to CSAAS. We discern no abuse of discretion. Defendant's remaining argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION